A/HRC/35/29
A/HRC/35/29Advance edited version / Distr.: General
19 April 2017
Original: English
Human Rights Council
Thirty-fifth session
6-23 June 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Working Group on the issue of discrimination against women in law and in practice
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of the Working Group on the issue of discrimination against women in law and in practice, pursuant to Council resolutions 15/23, 26/5 and 32/4. In the report, the Working Group proposes an analysis on good practices for the elimination of discrimination against women in law and in practice and for women’s empowerment. The question of how to identify good practices in ending discrimination against women is particularly poignant at this historical juncture, where a profound backlash against hard-won progress is occurring in all spheres. The continuing rise of fundamentalisms of all kinds and openly misogynistic, racist, xenophobic and populist voices, including Governments, is of grave concern to the Group. Efforts to re-entrench patriarchal understandings of sex, gender and family into the law point to important questions about sustaining progress and ensuring that good practices continue to be possible in fraught contexts. Ongoing attacks on autonomous women’s movements, civil society organizations, independent academia, public interest lawyers and women’s human rights defenders by State and non-State actors alike underscore the importance of identifying those good practices that uphold human rights gains.
Report of the Working Group on the issue of discrimination against women in law and in practice
Contents
Page
I. Activities 3
A. Sessions 3
B. Country visits 3
C. Communications and press releases 3
D. Other activities 4
II. Thematic analysis: good practices in the elimination of discrimination against women and
women’s empowerment 4
A. Introduction 4
B. Conceptual framework 5
C. Selected case studies 7
III. Conclusions and recommendations 18
A. Conclusions 18
B. Recommendations 19
` I. Activities
1. The present report covers the activities of the Working Group on the issue of discrimination against women in law and in practice undertaken since the submission of its previous report (A/HRC/32/44) until March 2017.
A. Sessions
2. The Working Group held two sessions in New York and one in Geneva during the period under review.[1] The roles of Chair-Rapporteur and Vice-Chair of the Working Group were carried out by Alda Facio and Kamala Chandrakirana, respectively. At its sixteenth session (18-22 July 2016), the Group held consultations on good practices with various stakeholders, including States, civil society organizations and relevant United Nations entities. It also met, inter alia, with the office of the Special Rapporteur on Women’s Rights of the Inter-American Commission on Human Rights.
3. At its seventeenth session (10-14 October 2016), the Working Group continued its consultations on good practices. It held meetings with members of the Committee on Economic, Social and Cultural Rights, the Special Rapporteur on the right to education, the Special Rapporteur on the human rights of migrants, the Special Rapporteur in the field of cultural rights and the Inter-Parliamentary Union. It also held consultations with various concerned stakeholders on the implementation of the Sustainable Development Goals.
4. At its eighteenth session (23-27 January 2017), the Working Group completed its work on the compendium of good practices. It chaired a round-table discussion on women migrant workers, organized by the United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women), with the participation of members from the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, as well as State and civil society representatives. It also met with concerned United Nations entities, including UN-Women and UNFPA, on the indicators of the Sustainable Development Goals.
B. Country visits
5. The experts visited Hungary from 17 to 27 May 2016 (A/HRC/35/29/Add.1) and Kuwait from 6 to 15 December 2016 (A/HRC/35/29/Add.2). They wish to thank the Governments of those countries for their cooperation before and during the visits. It also thanks the Governments of Chad and Samoa for having invited the Working Group to conduct official visits in 2017.
C. Communications and press releases
6. During the period under review, the Working Group addressed communications to Governments, individually or jointly with other mandate holders. The communications concerned a wide range of subjects falling within its mandate, including discriminatory legislation and practices, allegations of abuses of women human rights defenders and violations of their rights, gender-based violence and rights to reproductive and sexual health (see A/HRC/33/32, A/HRC/34/75 and A/HRC/35/44). The Working Group also issued press releases, individually or jointly with other mandate holders and treaty bodies.
D. Other activities
7. A member of the Working Group attended the sixty-first session of the Commission on the Status of Women, held in New York from 13 to 17 March. She participated, inter alia, in a high-level interactive dialogue on accelerating the implementation of commitments contained in the agreed conclusions for gender equality and the empowerment of women and girls, in an event on strengthened cooperation between the international and regional human rights mechanisms on women’s rights and participated in several consultations. She met with the Secretary General together with a group of women’s rights experts.
8. A member of the Working Group participated in the 2016 Forum on Business and Human Rights, where she spoke on 14 November in a panel discussion on embedding gender in the business and human rights agenda.
9. In September 2016, the Chair participated in the thirteenth annual forum of the Association for Women’s Rights in Development, on the theme “Feminist futures: building collective power for rights and justice”, attended by more than 2,000 activists from all regions of the world.
10. In May 2016, a member of the Working Group attended the Symbolic Tribunal on Maternal Mortality and Obstetric Violence, held in Mexico and co-organized by the Office of the United Nations High Commissioner for Human Rights OHCHR.
II. Thematic analysis: good practices in the elimination of discrimination against women and women’s empowerment
A. Introduction
11. The present report focuses on good practices in the elimination of discrimination against women in law and practice and women’s empowerment pursuant to Human Rights Council resolution 15/23, in which the Council established the mandate of the Working Group, including the collection of best practices in the area of the mandate and the development of a compendium of best practices.
12. The Working Group, in establishing its conceptual framework and working methods (A/HRC/20/28), decided to use the term of “good” or “promising” practices rather than “best” practices, taking into account the complex contextual framework of the wide spectrum of good to bad practices.
13. The present report builds on the Working Group’s first six years of work, of which investigating good practices was a core undertaking. It is the fruit of a long-term process of inquiry and consultation undertaken with States, United Nations agencies and civil society. It is informed by the Group’s 4 thematic reports and 12 country visits, as well as data gathered through research and consultations held specifically for the present report.
14. The Working Group wishes to express gratitude for the information submitted by diverse stakeholders in response to its questionnaire.[2] In order to ensure diverse inputs, the Group also benefitted from the support of a team of researchers based in all regions of the world, coordinated by the Women’s Human Rights Education Institute. It also held consultations with States, civil society organizations and United Nations entities when support was available. The enormous amount of data received goes well beyond the bounds of the present report and is available on the Group’s website.[3]
B. Conceptual framework
15. The Working Group appreciates that significant work has been done by other human rights mechanisms and United Nations agencies to gather good practices in the context of their work. It notes that there is no harmonized understanding of how to identify and investigate good practices, particularly in the context of the elimination of discrimination against women. Building on existing work in this area, the Group seeks to articulate its experience and expertise to further the conversation on methodological understandings of “good practices” and/or “promising practices” in the context of ending discrimination against women, to identify and share examples of good practices that serve as creative inspiration for the implementation of women’s human rights in multiple contexts, and to open an ongoing engagement process of collective knowledge-building in this area.
16. The purpose of the compendium, an exercise that extends beyond merely compiling a series of good laws or legal amendments, is to explore good practices that promote the elimination of discrimination against women, supporting both de jure and de facto realization of rights.
17. The law is an essential mechanism for women’s enjoyment of human rights. Law is both informed by and the creator of norms in society. Laws determine the values and operating principles by which actions and behaviours are deemed acceptable, or criminalized and stigmatized, and can have an enabling or chilling effect on women’s human rights.
18. The Working Group considers that laws may at times constitute good practices in and of themselves, but that more often they function as a component in the development of good practices. Constitutional amendments, laws or legal reforms, court decisions and the full range of ways in which laws are crafted and codified in diverse societies form an important piece of the “good practices” puzzle, and can have an immediate impact on de facto equality. A law can be “promising” or “good” in its crafting and articulation, and a court decision can be good, but for it to be considered a good practice, a wider context must be considered than can be found simply through analysis of a legal text. The Group is of the view that a good law usually becomes a good practice in conjunction with ancillary factors, such as the process by which it comes into being and is disseminated, operationalized and implemented. This is not to understate the importance of the law itself, but rather to emphasize that considerations of good practices cannot be based wholly on the legal texts themselves, but must be analysed in context, including tangible outcomes in lived reality.
19. Consideration of good practices in a global context requires an expansive approach to looking at the law and its implementation, to allow for inclusion of diverse practices reflective of varied political and legal systems and to support the identification of creative methods of supporting rights-fulfilment. Therefore, the present report includes not only all those constitutional, legislative and other rules and norms that are considered law in different legal systems, but also judicial review, legislative reform, litigation and case law, policy but also institutional reform, human rights monitoring, religious or cultural hermeneutic projects, partnership agreements between State and non-State actors, local, national and regional legal frameworks.
20. Significant progress in legal and policy frameworks for women’s rights has been made in the past decades. Nevertheless, while many countries have undertaken to repeal discriminatory laws, such laws persist in many parts of the world. Severely discriminatory laws and practices remain in particular areas of women’s human rights that continue to be contested, such as sexual and reproductive rights and equal rights in the family. Discriminatory laws also exist where the law is used punitively against women to maintain patriarchal values or to criminalize women’s struggles for their rights. In all contexts, there are ongoing challenges to the inclusion of an intersectoral approach to women’s full equality. Even in areas where the legal framework has advanced, or in societies with extensive and robust gender equality laws and policies, the test lies in the ability to implement progressive laws in practice. Innumerable barriers remain on many levels, not least of which is the male-controlled and discriminatory environment within which laws are operationalized. A good law requires a fully ameliorating environment in which it can be meaningfully implemented. No matter how strongly the law is drafted, it is filtered through the biases and limitations of the individuals and institutions, public and private, responsible for grounding it in reality, compounded by a social environment that disadvantages women through the perpetuation of historical discrimination, the patriarchal construction of gender and the perpetuation of stereotypes and prejudices. These factors must be considered closely when identifying which laws have become good practices.
21. The question of how to identify good practices in ending discrimination against women is particularly poignant at this historical juncture, where a profound backlash against hard-won progress is occurring in all spheres. The continuing rise of fundamentalisms of all kinds and openly misogynistic, racist, xenophobic and populist voices, including Governments, is of grave concern to the Working Group. Efforts to re-entrench patriarchal understandings of sex, gender and family into the law point to important questions about sustaining progress and ensuring that good practices continue to be possible in fraught contexts. Ongoing attacks on autonomous women’s movements, civil society organizations, independent academia, public interest lawyers and women’s human rights defenders by State and non-State actors alike underscore the importance of not only protecting and supporting the crucial role of women human rights defenders, but also identifying those good practices which uphold human rights gains.
22. Naming a “good practice” is a complex process. The purpose of investigating and sharing good practices is to help build collective knowledge and public recognition of the steps and processes States must undertake to fulfil their obligations under international human rights law. States’ duty to respect, protect and fulfil women’s human rights are requirements of human rights law. Good practices illustrate the ways and means to implement human rights most effectively in diverse contexts. When good practices are viewed in isolation from the breadth of actions and actors involved in processes of social change, they can lose their power as a source of learning and fail to enhance collective knowledge of what it takes to bring human rights principles into reality.